IN RE: Vera BOLOTNIKOV (1999)

In a proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Richmond County (McElrath, J.), dated June 29, 1998, which denied his objections to an order of same court (Fondacaro, H.E.), dated April 22, 1998, which, after a hearing, denied his petition to modify an order of the same court dated November 18, 1997, which, after a hearing, granted the mother's petition for child support and spousal support, directed him to pay $198 per week in child support for the parties' daughter Anna and $55 per week in spousal support, and failed to direct the mother to pay him child support for the parties' son Roman.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Family Court, Richmond County, for further proceedings in accordance herewith.

The father commenced this proceeding for a downward modification of a child and spousal support obligation established pursuant to an order of the Family Court dated November 18, 1997, made after a hearing.   The Family Court denied such relief.   We now reverse and remit the matter for further proceedings.

 Although the proceeding at bar may not be used merely to relitigate matters that were or should have been determined in the proceeding giving rise to the order dated November 18, 1997 (see, Giryluk v. Giryluk, 149 A.D.2d 665, 540 N.Y.S.2d 476;  Matter of Leone v. Leone, 137 A.D.2d 753, 525 N.Y.S.2d 253;  Matter of Wareham v. Wareham, 34 A.D.2d 647, 309 N.Y.S.2d 990;  Matter of Medici v. Medici, 53 Misc.2d 826, 279 N.Y.S.2d 910;  Family Ct. Act § 451), the Family Court erred when it declined to consider the father's proof in support of his allegations that there had been a decrease in his income and an increase to the mother's income sufficient to warrant a modification of his child and spousal support obligations (see, Family Ct. Act §§ 413, 451;  Matter of Bolotnikov v. Bolotnikov, 262 A.D.2d 317, 691 N.Y.S.2d 563 [decided herewith];  Matter of Bode v. Bode, 254 A.D.2d 355, 678 N.Y.S.2d 648;  Matter of Meyer v. Meyer, 205 A.D.2d 784, 614 N.Y.S.2d 42;  Mauss v. Mauss, 100 A.D.2d 576, 473 N.Y.S.2d 511;  Passaro v. Passaro, 92 A.D.2d 861, 459 N.Y.S.2d 839;  Matter of Garritano v. Garritano, 49 A.D.2d 906, 374 N.Y.S.2d 25;  Matter of Gershowitz v. Gershowitz, 35 A.D.2d 816, 317 N.Y.S.2d 246).

MEMORANDUM BY THE COURT.